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Brian Bix, Raz, Authority, and Conceptual Analysis, 50 Am. J. Juris. 311 (2006), available at http://scholarship.law.umn.edu/
faculty_articles/449.
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RAZ, AUTHORITY, AND CONCEPTUAL ANALYSIS
BRIAN H. Bix*
I. INTRODUCTION
Raz reaffirms roughly the same view of authority he has been advocating
for over 25 years.2 Raz argues (here I summarize a detailed argument in
general terms) that we are justified in subjecting our will and judgment to
another when (1) we are more likely to do the right thing by doing so than we
are by deciding for ourselves; and (2) this is not a matter for which there are
special reasons making it important that we decide for ourselves.'
I want to explore Raz's views about the concept of authority. Raz writes:
I keep referring to 'our' concept of authority. But is there such a thing? Are
there not several concepts, all of them descending from the very same ancestors?
Most probably so. Each person when using the concept of authority uses his
concept, and should allow for the possibility that there are several.4
* I am grateful to Joseph Raz and Dennis Patterson for comments on an earlier draft.
1. Joseph Raz, "Authority: Revisiting the Service Conception" (unpublished manuscript),
presented at the Conference, "Natural Law and Natural Rights in Contemporary Jurisprudence,"
Princeton University, September 2005. A version of that paper is forthcoming in the Minnesota
Law Review.
2. See, e.g., Joseph Raz, The Authority of Law (Oxford: Clarendon Press, 1979), 3-27;
Joseph Raz, The Morality of Freedom (Oxford: Clarendon Press, 1986), 38-69; Joseph Raz,
PracticalReason and Norms (Princeton: Princeton University Press, 1990), 62-65, 191-194;
Joseph Raz, Ethics in the Public Domain (Oxford: Clarendon Press, 1994), 194-221.
3. Raz, supra, note 1.
4. Ibid.
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He adds:
5. Ibid.
6. For Raz, "de facto authority" is parasitic on the concept of legitimate authority, for it
involves an entity claiming, but claiming falsely, to be a legitimate authority.
7. This draws on Robert Paul Wolff's famous challenge, from In Defense of Anarchism
(New York: Harper & Row, 1970).
The statement in the text may well be too simple, in at least one way. Central to Raz's
view of authority (and one of the main grounds for criticism of it), and a point that goes beyond
when a person or text is authoritative, is the role (for Raz, exclusionary and preemptive) that
authorities do or should play in our practical reasoning.
8. Raz, supra, note 1.
2005 BRIAN H. BIX
9. See Joseph Raz, "Two Views of the Nature of the Theory of Law: A Partial
Comparison," Legal Theory 4 (1998) 249, 276; see also Joseph Raz, "On the Nature of Law,"
ArchivfiirRechts- und Sozialphilosophie 82 (1996) 1; Joseph Raz, "Can There Be a Theory of
Law?," in The Blackwell Guide to the Philosophy of Law and Legal Theory, ed. Martin P.
Golding and William A. Edmundson (Oxford: Blackwell, 2005), 324-342.
10. See, e.g., Raz, "Can There Be a Theory of Law?," 326, 331.
11. Ibid., 326-28.
12. Ibid., 328, 331.
13. Raz, Ethics in the Public Domain, 221.
14. Raz, "Can There Be a Theory of Law?," 331.
15. While Raz asserts that the concept of law "exists independently" of the legal philosophy
which attempts to explain it, Raz, "Two Views of the Nature of the Theory of Law," 280-81,
he also argues that since the concept(s) of law are in flux, our theories of law, even mistaken
theories, could influence the concept of law future generations have. Raz, "On the Nature of
Law," 7.
16. Cf. Frank Jackson, From Metaphysics to Ethics: A Defence of Conceptual Analysis
(Oxford: Oxford University Press, 2000).
17. Though it is open to someone to argue that the category lines are in fact based on
empirically testable data: e.g., linguistic usage tendencies within a community.
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While Raz's recent writings seemed to imply or assume a view that we all
share a single concept of law, 8 at the Conference, in response to an earlier
version of this Comment, Raz denied that he held that view. He stated that he
is not committed to there being only one concept of law in a country, though
"given the centrality of legal institution[s] in our societies it seems likely that
most articulate people share a concept of law. ' 9
A classical Platonist would likely assert that there is only a single Idea of
"law," of which our various legal systems are imperfect manifestations.
However, Platonism is a metaphysical position that many people find unlikely,
at least when applied to social practices and institutions. It is not hard to find
theorists who seem to support view that there are multiple, competing con-
cepts of law. 20 How should we determine whether there is one or many con-
cepts of law?
Raz is correct that the mere fact of divergence in beliefs about law or in the
application of the term/concept is insufficient to prove that there are multiple
concepts. As Raz states, such divergence may be explicable by mistake,
partial knowledge, vagueness in the concept itself, etc.2' And the fact that we
can talk about "law" without all of us always talking past one another
indicates that there is at least an overlap in the concepts (if there are more than
one), but this fact by itself certainly does not make the case for a single
concept conclusive.
It is tempting to say that concepts of law would be kept from multiplying
in a way that concepts of authority would not, by the fact that a concept of law
must fit institutional practices, while there seems no comparable constraint on
a concept of authority. This initially promising line of argument does not
seem likely to hold up, 22 however, in that, for both law and authority, the
18. Raz refers repeatedly to "the concept of law," e.g., Raz, "Two Views of the Nature of
the Theory of Law," 280-81 (emphasis added), and also note the singular "the concept" and "our
concept" throughout the relevant writings. E.g., Raz, "On the Nature of Law," 4 (emphasis
added).
19. This language is from a subsequent e-mail to me from Joseph Raz, Sept. 27, 2005,
confirming the position he took at the Conference.
20. Consider, e.g., the view of Stephen Perry, who argues that there is more than one
tenable theory of the nature of law, grounded on different tenable theories about the purpose of
law. See Stephen R. Perry, "Interpretation and Methodology," in Law and Interpretation,ed.
Andrei Marmor (Oxford: Oxford University Press, 1995), 97-135; Stephen R. Perry, "The
Varieties ofLegal Positivism," CanadianJournalofLaw and Jurisprudence9 (1996) 361. One
could easily re-characterize those claims as asserting that there are alternative concepts of law.
21. See Raz, "Authority: Revisiting the Service Conception"; Raz, "Can There Bea Theory
of Law?," 326-327.
22. At the Conference, Raz disagreed, commenting that the connection between the concept
of law and actual legal practices was in fact a reason for believing that it is somewhat more
2005 BRIAN H. BIX
There are tensions surrounding all conceptual claims within analytical legal
(and moral and political) theory. Any such claim, whether applied to
"authority" or to "law" or to some other subject, can be met by criticism from
one side, that it should be supplanted by empirical or sociological investiga-
tion, and criticism from another side, that it needs to be supplemented by
moral or political selection and argument.24
If we are trying to discover what "our concept" is-of authority, law, or
(say) honor-why would we25 consult a philosopher rather than, say, a pollster,
a linguist, or a sociologist?
A concept is a category of thought by which we divide up the world. The
question is, why should we care about the nature of these categories, of this
way of dividing up the world, if they do not correspond to some ultimate
likely for law than for authority that we have only a single concept rather than competing
concepts.
23. For arguments that meta-theoretical grounds would suffice, see, e.g., Raz, Ethics in the
Public Domain, 219-21; Jules Coleman, The Practiceof Principle(Oxford: Oxford University
Press, 2001), 197-210; Andrei Marmor, "Legal Positivism: Still Descriptive and Morally
Neutral," USC Legal Studies Research Paper No. 05-16, http://ssm.com/abstract=763844; for
contrary views, see, e.g., the Perry articles cited in note 20.
24. For the latter critique, see, e.g., John Finnis, "Law and What I Should Truly Decide,"
American Journalof Jurisprudence48 (2003) 107, 125-126.
25. See Brian Leiter, "Beyond the Hart/Dworkin Debate: The Methodology Problem in
Jurisprudence," American Journal of Jurisprudence 48 (2003) 17, 40-51. For other, more
general skeptical discussions of conceptual analysis, see, e.g., Gilbert Harman, "Doubts About
Conceptual Analysis," in Philosophy in Mind: The Place of Philosophy in the Study of Mind,
ed. Michael Michaelis and John O'Leary-Hawthome (Dordrecht: Kluwer, 1994), 43-48; Jerry
Fodor, "Water's Water Everywhere," London Review of Books, vol. 26, no. 20, Oct. 21, 2004.
THE AMERICAN JOURNAL OF JURISPRUDENCE Vol. 50
reality? With the concept of authority, one can respond that the interest of the
inquiry (and the value of this way of dividing up the world) is that it involves
a particular, and important, normative question (when should we defer?), that
would be worth investigating even if there were no conventional concept that
corresponded to it. With law, the matter is different; one could reasonably ask
why we should care about the current conventional way of distinguishing
"law" and "non-law." The criticism would continue: the conventional dis-
tinction may have some interest for sociologists and linguists, but it may not
have significant philosophical interest. Further analysis is needed on the
question of why we should build theories about this conceptual boundary.
V. CONCLUSION